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The Next Battle in the Abortion Wars

By ROBIN MARTY

February 17, 2014

If you want to know how the abortion wars will be waged in the months ahead, pay attention to what’s happening far away from the media’s glare, in South Dakota, a state that has long been on the front lines of America’s still very much unresolved conflict over how and when women can end an unwanted pregnancy.

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In both 2006 and 2008, South Dakota’s voters rejected full abortion bans, and since then anti-abortion legislators have debuted a variety of abortion restrictions meant to close the last abortion clinic in the state or promote continuing unwanted pregnancies. Within just the last few years, South Dakota has passed multiple bills to restrict abortion access, from requiring physicians to tell patients that terminating a pregnancy would make her more likely to commit suicide, as well as another that forced a potential patient to wait 72 hours for an abortion and visit a crisis pregnancy center before the procedure, to ensure she wasn’t being coerced into her decision. (The “counseling” portion was blocked by the courts, though the waiting period wasn’t.)

Under the influence of abstinence-only education power-hitter Leslee Unruh, the local crisis pregnancy center owner who led the voting campaign to ban abortion completely, and pro-life lawyer Harold Cassidy, the New Jersey lawyer who often drafts South Dakota’s anti-abortion bills, the state has become a testing ground for messaging, ballot initiatives and trial-balloon legislation meant to provoke a Supreme Court review of the durability of the Roe v. Wade decision. Now, South Dakota may be laying new groundwork to end legal abortion at any point after the first trimester—first in the state but, also, if history repeats itself, for the country. What happens in far-off South Dakota, in other words, very likely won’t stay there.

House Bill 1241, which was filed in early February, would make it a felony to “dismember” a living fetus during an abortion procedure. According to the bill, “the term, dismember, means to use an instrument or procedure for the purpose of disconnecting any bones at their joint, completely severing any bones, or removing any organs or limbs, including the spinal cord, arms, legs, and internal organs.”

What this gruesome-sounding explanation means, in essence, is that H.B. 1241 would make it against the law to perform what is known as a D&E (dilation and evacuation) abortion, a common procedure used in nearly all second-trimester abortions.

D&E is the procedure of choice for abortions starting at roughly 14 weeks’ gestation. Grasping and removing single pieces is the easiest way to remove an early second-trimester fetus that may not fit in the cannula, the hollow plastic tube commonly used in abortion procedures, in one piece. It’s also a legal necessity, as federal law prohibits the extraction of an intact live fetus through the 2003 “Partial Birth Abortion Ban Act,” signed into law by President George W. Bush. The ban was written to prohibit a procedure clinically known as “intact D&E,” wherein the fetal body is pulled in one complete piece through a woman’s dilated cervix, often completed by collapsing the skull to make it easier to pass the full fetus through the cervix without additional risk of injury to the patient. When the bill was being debated, medical professionals expressed great concern that the ban not only would prohibit what congressional Republicans were graphically describing as “partial birth,” but also could have inadvertent repercussions by setting a precedent for banning any D&E procedures.

Their concern wasn’t misplaced. Abortion opponents continue to use legislative bills to pass full bans on ways to administer an abortion in one state, only to watch them spread. The use of FDA protocol abortion drug restrictions, which cause practitioners to use a decade-old solution rather than current best practice, has all but eliminated the ability for pregnant patients to obtain medication abortions in Ohio; it has been proposed or passed in Mississippi, Oklahoma and North Dakota, as well. Now, South Dakota’s potential ban on “dismemberment of a live fetus” could follow a similar path.

If that occurs, one anti-abortion leader will be more than happy to see it happen. Father Frank Pavone, the director of the national anti-abortion group Priests for Life, has long urged abortion opponents to focus on D&E as the type of bipartisan abortion restriction that could once more change the national debate. Telling a crowd of more than 200 in June of 2011 that his organization was already looking into ways to outlaw D&E, Pavone said that by focusing on “dismemberment” of a fetus in utero, they might be able once more to pull traditionally pro-choice people to their side.

“Now it’s time for Act 2,” reads the Priests for Life website, where the organization lays out talking points and support documentation to argue in favor of a D&E ban. “Now is the time to ask the American public, whether pro-life or pro-choice, a simple question: Should dismemberment of a living child in the womb be permitted? Let’s go beyond the all-encompassing question of ‘Should abortion be allowed?’ and ask, ‘Should this specific procedure, in which a child’s arms and legs are ripped off, and head crushed, be allowed?’”

The wording is strategic. Pavone and Priests for Life specifically uses language that came from the 2007 Carhart v. Gonzales case, in which the Supreme Court heard a challenge to the Partial Birth Abortion Ban Act—a law that, unlike previous abortion rules, did not have an exception for a pregnant person’s health. Priests for Life also refers to testimony on performing a 20-week D&E procedure by Antony Levantino, a doctor and former abortion provider who became a pro-life activist and who often appears at congressional hearings, where he talks about abortion procedures in graphic detail.

It is this kind of evocative language, combined with polling that claims that anywhere from 60 to more than 80 percent of Americans believe abortion should be restricted after the first trimester, that makes a D&E procedure ban such a tempting target. Like with the so-called “partial birth” abortion ban strategy, detailed illustrations and morbid verbal depictions are all ready to be commissioned when it becomes time to testify for a bill.

Abortion opponents would claim that the ban isn’t in fact a ban at all—simply a regulation of how the procedure should be performed. Just as abortion providers were in some way able to navigate around the “partial birth” language of the 2007 federal ban by injecting the fetus prior to an abortion to be sure that it was not alive during the termination, the South Dakota bill does not prohibit non-intact extraction if the doctor performing the abortion is sure of the fetus’s demise beforehand.

Unfortunately, that is where things can get complicated. At the age of 14 weeks to 16 weeks, when a fetus is most likely to be too large to enter a cannula, it is also still too small to easily be injected in the heart to ensure fetal demise before an abortion is begun. “Before 18 weeks, injection gets more difficult,” explains Cheryl Chastine, a family medicine physician who also provides abortions in Kansas. “Fetal injection is technically difficult between 14 and 18 weeks because the fetus is relatively small and there is a large value of amniotic fluid.” Regardless of gestational age, however, Chastine notes that fetal injection is not always medically appropriate and it always poses at least a small additional health risk to a pregnant person.

The problem, as Chastine sees it, is that legislation like the bill proposed in South Dakota is remarkably vague and leaves doctors unclear on how to perform even very early second-trimester and potentially even first-trimester abortions without running afoul of the law. Because the fetus prior to 14 weeks has not yet developed calcified limbs or bones, even standard first-trimester aspiration could potentially involve it falling to pieces during the procedure. The threat of being charged with a felony could make doctors choose to avoid offering abortion all together, or only perform them after ensuring fetal demise, even if that might potentially add unnecessary heath risks for the mother.

Increasing the risks associated with an abortion, and for no medical reason, would seem an odd endeavor for a movement claiming that its major reason for wanting to end abortion is concern for women’s health and safety. But a full D&E ban has always been the intention of anti-abortion activists, even when they framed their initial advocacy around only stopping live “partial birth.”

According to Johanna Schoen, professor and author of the upcoming book Living Through a Giant Change: Abortion after Legalization, the early intact D&E abortion debate was successful for anti-abortion activists in two significant ways—by dividing pro-choice supporters, some of whom were unwilling to defend a procedure portrayed as so gruesome, and by forcing abortion rights activists into a corner where the most effective defense of the procedure was that it was rarely used—and only in extreme cases. The partial-birth abortion ban also served to reverse the tide of support for abortion rights legislation and the public sympathy for abortion providers, several of whom, starting in the early 1990s, were shot and killed.

In many ways, the pro-choice community faces a similar landscape today. Due to closing clinics, “personhood” pushes that would give legal protections to fertilized eggs and legislation meant to cut off access even to birth-control options, there is a growing backlash against the more extreme “conception to natural death” wing of the anti-abortion movement. That backlash has grown even clearer during the most recent elections, when voters refused to put “no exceptions” abortion opponents into the Senate in states like Missouri and Indiana, despite both races appearing to be easy wins.

Does this explain the timing of South Dakota’s H.B. 1241, and an initial toe-dipping into the waters of another public debate over an abortion procedure that can be painted as exceptionally unsettling? Whatever the reason, it is a debate Father Pavone is eager to begin.

“There’s a challenge here that goes far beyond the debate of ‘should we outlaw D&E abortions?’” he says. “The challenge is: How do we even talk about this issue? The pure, simple question is that we know children are being dismembered, so should that be allowed or not? If these bills are introduced, it can be the testing ground for this debate. I’d like people to wrestle with this issue.”

Should H.B. 1241 pass, the strategy leading to copycat laws could follow the same path as the 20-week post-fertilization “fetal pain” abortion bans. After the first bill to do so was introduced and passed in Nebraska, and abortion provider Leroy Carhart moved his later-term practice out of state rather than challenge the law, model bills popped up across the country, mostly in states where no one provided abortions that late in a pregnancy. That gave an appearance of constitutionality to the pre-viability ban simply because no one had legal standing to take a case to court. (If the Supreme Court decides to take up the 20-week “fetal pain” ban, a goal abortion opponents have been pushing for since it was first introduced, the first thing defenders will point out is how there are 12 states with it already in place, and only Idaho’s ban has at this point been ruled unconstitutional by a federal court.)

In South Dakota, a D&E ban could go unchallenged as well. The only clinic in the state offers the procedure just through the first trimester. State law requires any later abortions to be performed in hospitals, which are far less likely to want to get involved in something as politically charged as a court battle over abortion.

South Dakota may be the scene of the opening salvo of the D&E debate, but it likely won’t be its only battleground. Although Pavone did not mention any specific states or bills, he did imply that he and others who oppose abortion are anxious to see what ways both the legal courts and the court of public opinion can be used to make abortion illegal after the first trimester. All a state really needs, according to Pavone, is a good reason to say it must protect the pregnancy, even if that reason is just that public perception is that a fetus at the start of the second trimester is “really is one of us” and “really a baby.”

H.B. 1241 will be heard in the South Dakota legislature’s Republican dominated Health and Human Services Committee, and it will probably to sail through for a full legislative vote. Based on the state’s history with abortion restrictions, it’s likely to be signed into law, with the only question being whether the bill will be challenged or not. A refusal to challenge means a precedent will be set for banning abortion immediately after the first trimester. A court battle, on the other hand, gives those against abortion the chance to discuss “fetal dismemberment” graphically in the hope of moving more Americans to accepting a fetus as a baby that must be protected from harm.